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Will the real Lord Carlile please stand up?

17 April 2012 - Fahad Ansari

Following the decision of the European Court of Human Rights on 10 April 2012 in relation to British terror suspect Babar Ahmad and his extradition to the US, Liberal Democrat peer and senior barrister Lord Carlile made a number of comments to the media which seem legally questionable and contradictory to opinions he has publicly stated in the past.

At the outset, Lord Carlile described Mr Ahmad’s family’s belief in his innocence as “unsurprising” and based on “filial loyalty”. Apart from this being very patronising to Mr Ahmad’s family, it fails to acknowledge a more fundamental reason for their holding that belief, one which all lawyers ought to be familiar with – the presumption of innocence. Mr Ahmad has never been convicted of the allegations against him despite being detained without trial for almost 8 years. To ascribe the presumption of innocence to “filial loyalty” simply undermines this noble principle of law.

Lord Carlile repeatedly claimed that the correct forum to try Mr Ahmad was the US, insinuating that the websites he is accused of operating targeted the United States. For example, in an interview with BBC Radio 5 Live, Lord Carlile stated

“If the target of the crime is the United States and what they’ve done is a crime in the United States then ... there is absolutely no reason why they should not be tried in the place the crime was aimed at. By the same token, if someone decided that they wanted to bomb the Olympic Games this year for example and they happened to be based in a foreign country we would want to try them here.”

“If I sit in London and commit an offence on the internet in the United States which affects allegedly American national security and the safety of American citizens, in my view it would be entirely reasonable to be tried in the United States.”

The entire basis of Lord Carlile’s conclusion is that the websites Mr Ahmad is alleged to have operated from the UK targeted the United States. The example that Lord Carlile provides regarding the Olympic Games insinuates that Mr Ahmad, through these websites, was plotting such attacks on the United States, something that is not reflected in the words of the actual indictment. By and large, the websites are alleged to have provided support to fighters in Chechnya and Afghanistan primarily during the 1990s. By Lord Carlile’s reasoning, the correct forum to try Mr Ahmad should be Russia or Afghanistan and not the US.

With respect to the correct forum in relation to internet crime, Lord Carlile, in his debates with lay members of the public, was at pains to stress his legal credentials to justify his position. He told one campaigner that he did not “understand the law of jurisdiction” and told him he was “speaking nonsense”. According to Lord Carlile, Mr Ahmad “committed an offence in US albeit the buttons were pressed in London.” It is very surprising that a senior lawyer like Lord Carlile appeared not to be aware of the Court of Appeal decision in Regina v Sheppard & Whittle [2010]. In that case, the Court considered the correct forum for trial for a crime involving the possession, publication and internet distribution of racially inflammatory material hosted on a remote server in the US. Lord Justice Scott Baker, who Lord Carlile described as “one of England & Wales’ most senior and highly respected judges“, ruled that the UK was the appropriate forum for trial because a “substantial measure of the activities” constituting the crime (the operation, maintenance and collation of all material for the website) took place in the UK.

Mr Ahmad too is accused of operating, maintaining and collating material for a website from the UK which was simply hosted by a remote server in the US for a period of a few months. According to the legal precedent, the correct forum for his trial is therefore the UK and not the US.

In fact, Lord Carlile appears to have been of the same opinion in the past. Commenting in the Daily Mail in 2010 on the pending extradition of Gary McKinnon, accused of hacking into the Pentagon and NASA websites, Lord Carlile wrote

"There is no doubt that Mr McKinnon could be prosecuted in this country, given that the acts of unlawful access occurred within our jurisdiction (ie from his computer in North London) and that he has admitted the offences."

"The English legal system is perfectly positioned to deal with cases of this nature making McKinnon’s extradition both unnecessary and disproportionate."

"Moreover, a decision to prosecute here would not be without precedent. There have been at least three other cases of hacking into US computer systems that have been prosecuted in the UK. It is unfathomable why Mr McKinnon should be treated differently."

In light of such clear support for domestic prosecution instead of extradition, to hear Lord Carlile justify Mr Ahmad’s ongoing detention without trial, now stretching into its eighth year, was all the more shocking. Lord Carlile stated

"…he [Mr Ahmad) had the option to go and be tried in the United States at any time. He has chosen to resist that extradition to the United States so the British state can hardly be blamed for the time he has spent in custody particularly in the light of today’s ruling."

This is a far cry from Lord Carlile’s opinion, not just in 2010 when commenting on Mr McKinnon’s case, but just over 6 weeks earlier in February 2012 when he appeared on Sky News to discuss the extradition of Christopher Tappin to the US. Lord Carlile described how he was “absolutely appalled” by the US plea bargaining system which was “something we would not tolerate in this country” because “it creates a very unlevel playing field.” He expressed his wish for a parliamentary inquiry to be carried out to examine “whether it is acceptable for people to be sent back to the US to face their intimidating plea bargaining system which effectively forces people to choose between, say, 35 years imprisonment and a short sentence which is not a fair choice." He also referred to one case where a defendant was “offered a choice between a "ludicrous" 720 years in prison, if convicted, or of travelling to the UK to give evidence against his brother and serving three to four years.”

“Who can resist that sort of pressure? It is irrelevant whether the evidence he gives here is true or false, whether the plea he gives is true or false. It is the process. If you examine English law, particularly the Police and Criminal Evidence Act, then most American plea bargains would not be admitted as part of the English evidential system.”

Lord Carlile’s credibility as a legal commentator on such matters must surely be questioned when he can espouse such diametrically opposing viewpoints on such issues depending on the name of the defendant. For Mr McKinnon, domestic prosecution must take place over extradition even if the US was the victim of the alleged crime. For Mr Ahmad, extradition is “perfectly reasonable”. For Mr Tappin, it is unacceptable to send people to the US because of the “absolutely appalling” plea bargaining system. In Mr Ahmad’s case, he is to blame for his ongoing detention for resisting extradition to the same system.

The reality is that if Mr Ahmad had been prosecuted in the UK eight years ago for a crime allegedly committed in this country, he would be a free man by now irrespective of the verdict for he has already effectively served a 16 year criminal sentence. Had the police allowed the Crown Prosecution Service to view all the evidence seized from Mr Ahmad’s home before transferring it to their American counterparts, presumably he could have been rightly prosecuted in this country. It has been this serious abuse of process that has caused Mr Ahmad’s ongoing detention and not Mr Ahmad’s reasonable and legitimate resistance to his attempted extradition to a foreign jurisdiction for a crime that was allegedly committed in his home country. Lord Carlile wrote the following words in relation to Mr McKinnon.

"This case has rumbled on for over 8 years. A just, compassionate and lawful decision is seriously overdue. The choice is not just to extradite or set free. There should be a UK investigation and where real evidence of unlawful behaviour exists, Mr McKinnon should be held to account."

"However, for this to happen our Government needs properly to take responsibility for this case rather than cede prosecution to another jurisdiction."

Mr Ahmad’s circumstances are identical save for the fact that he has been imprisoned throughout this period. Lord Carlile’s failure to recognise this suggests that his comments, rather than being built on established legal principles, are nothing more than political rhetoric.